QUESTIONS, ANSWERS AND IDEAS

NAME CHANGES JUNE 3, 2015

Surname changes are guided by NY Civil Rights Law §§ 60 and 63. The process includes petitioning a Court (Supreme for adults, Family for names of minors), filing an order at the Count Clerk and publication of the change. Changes are freely allowed, restricted to discourage fraud and debt escape. For adults, a divorce is the cause for a change. In practical terms, driver’s licenses, auto title registrations, tax department filings, passports can all be changed by application with a certified copy of the divorce order. Real property name changes can be simple but are case specific.

A minor’s surname is changed by court order, or adoption. The applying parent must show the change will substantially promote the interests of the child – a best interest standard -- even where the other parent consents. For instance, a name change with an ethnic background that saw family members commonly having different surnames was first denied and later granted after appeal: the lower court’s application of best interests did not recognize the child’s culture.

Where consent is not given, the Court goes through two steps. First, if the original name is associated with heinous misconduct, the child is abandoned, and, sometimes, if the other parent has provided no support, then the Court is inclined to agree to a change. Second, if the child agrees and is mature enough to show considered thought to the agreement, the Court may approve; however, the Court is equally inclined to allow the child to grow up in age until he/she can make his/her own application. Beyond those principles, best interest takes many forms.

As the recognized family structure expands to include same sex couples, as well as earlier independence of children, the opportunity to complete a name change expands as well. The family structure itself is not a barrier to a change now as much as in the past. An interesting challenge is the validity of divorce settlement clauses that dictate that a child’s surname shall not be changed. Where best interests appear, the contract may be challenged, though raising the bar.

NOTE FOR THERAPISTS MAY 7, 2015

NY’s highest court confirmed on May 5 the sanctity of the privacy privilege for patient-therapist relations. The message was clear and strong: absent a new statute, and within the existing statutory exceptions, a therapist cannot be compelled to disclose a patient’s confidence.

In ¬People v. Rivera all six justices confirmed the 1st Dept.’s decision to order a new trial where the significant, and practically exclusive, evidence against the convicted defendant was the testimony of the defendant’s therapist that the patient had admitted to sexual abuse of an 11 year old niece. Without that testimony, it would appear, the conviction could not have been obtained. The defense at trial had objected to the therapist testifying since the patient did not agree to break the privilege, which was the patient’s privilege. The trial court ordered the testimony over the objection.

Very importantly, the criminal court venue is about the only court that could hear the case. Family Court Act Article 10 would not have come to play since the defendant was a relative, not a parent or person in charge of the child. Article 10 proceedings, on child abuse and neglect, permit some exposure of therapist-patient confidences. The Rivera court made it clear that the Article 10’s statutory exception to the privilege does not flow courts which can, and here did, lead to jail. The Rivera court so preserved the exception for Art. 10 abuse proceedings while confirming the strength of the privacy privilege in criminal proceedings and so avoided a constitutional challenge to application of the privilege in Family Court.

The privacy issue deals with CPLR §4504(a): “unless the patient waives the privilege a person authorized to practice medicine … shall not be allowed to disclose any information … acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” The Rivera court points out the privacy privilege exists to encourage open talk in treatment, accurate recording of treatment by care providers, and creates reasonable privacy expectations needed to encourage a person to seek treatment. Statutory exceptions exist, such as in child abuse/neglect and evidence exceptions encoded in FCA Art. 10. Exceptions also exist on the criminal side, and the court references reporting of gun wounds, death by knife, burn injuries, and reporting on communicable diseases.

The Rivera court footnotes expressly that it does not deal in any way with the California based “Tarasoff doctrine”, requiring mental health care people to disclose patient information on a determination that the patient poses a “serious danger of violence to another.” Tarasoff in NY has its own world. The Rivera admission was made while in-patient at what would be an OMH facility, so the footnoted exception is directed as caution not to take all of the Rivera lessons to Tarasoff analyses. The footnote that Tarasoff concerns are not addressed by Rivera, leaves the professional with the queasy feeling that non-reporting probably is defensible in a non-Tarasoff situation, but may or may not be defensible in a Tarasoff situation, with the difference laying in perceptions of the immediacy making a serious danger.

This is the second personal privacy decision made by the Court of Appeals this year which leaves the court telling the legislature that new statutes may be needed and that the Court would not create separate, privacy based law. In both cases, the court is unanimous.

Rivera is brief. I can forward a copy on request: libhall@optimum.net

AT WHAT AGE CAN A CHILD BE LEFT ALONE? APRIL 28, 2015

Only 10 states have statutes on this, with ages ranging from 6 to 14, most being around 10 years old. New York State has no statutory language on the topic.

A permissible age is left to

a. Weighing the child's maturity (ability to function in the event of something going wrong)

b. Experience (ability to phone a neighbor, go to a neighbor, or call 911 at a minimum to understanding how to leave a burning building to what not to play with);

c. Environment (no guns left out to chemicals stored safely); and

d. judging all that in the context of the duration in which the child will be alone (one child alone for 2 hours may be far different than for 5 hours, mealtime versus play time of day).

Somewhat different, and a new twist on the old topic, is leaving a child alone (or with a similar age sibling) in a public place, such as a park. Recent cases have dealt with investigations of child endangerment for children allowed to walk to, play at, and walk back unattended from play at local parks. Given the trouble that the practice has caused after police are called then child protective services are called and investigations are run, children detained and press involvement, the practice might be considered ill advised, but the teaching of independence is prized by many. And, there are communities where the practice of independent, albeit paired, walking to and from school or to and from the park is established and community protected.

Understand your reasons for allowing a child to stay home alone or walk someplace alone. Keep those reasons handy. And, review them as the circumstances may demand. Some years ago, an infant was left in a carriage outside a restaurant while the parent had a meal sitting on the other side of the glass -- a common practice in that person's country of origin, but not locally. Remember that what is acceptable in one place may be deemed unacceptable in another place.

If you allow independent activity by young children have firm convictions as to why your child is safe in that environment and be prepared to repeat those convictions lucidly and repetitively to police and child protective services, should the need arise.

PRIVACY RIGHTS AND FAMILY APRIL 15, 2015

First Dept has done review of right of privacy, commerce and art in Foster v. Svenson. Taking pics with telephoto from one NYC apartment building into another without other's knowledge and then placing pics into a gallery exhibit did not invade right of privacy (Civil Rights Laws 50 & 51) since there was an artistic origin and no showing of pictures being used for advertising or trade purposes. I bring it up here as reminder of limits we can place into divorce and custody settlements about the use of pics of family and children. Such agreements have merit and are more common South of Putnam than North, but are limited in their scope or enforcement. There can be an agreement not to use pictures of children on Facebook, or even dating websites, but it may not be enforceable without there being a commercial purpose. Using pictures of children on a personal Facebook page may not be barred, while using them on a Facebook page with a commercial purpose could be. The other parent could object to the commercial use, but an objection may not go far without specific language in an agreement as to penalty or prohibition for personal uses.

What Makes a Divorce

New York now has the Irretrievable Breakdown of the Marriage as adequate grounds for obtaining a divorce. This is called no-fault divorce in other states. It is now the most used basis for a divorce. It has taken over from the prior common grounds: Abandonment (one year or longer from marital relations or the marital residence without intent to return) and Cruel and Inhuman Treatment by one spouse against the other so as to make continued cohabitation impossible. Adultery has always been a ground for divorce, but not often used since it requires a specific naming of person(s) and events and a hearing on the facts. There are also grounds related to imprisonment.

Still used is the conversion divorce: a prior written agreement of the parties properly completed in existence for one year or longer and complied with by the parties that the spouses will live separate and apart can be converted to an absolute divorce. The use of a separation agreement has been found most common where it is desired to continue the health insurance coverage for one spouse by the other spouse’s insurance carrier.

The irrecoverable breakdown of the marriage requires that there be an agreement between the parties as to the settlement of a long list of issues. Those issues include, but need not be limited to child custody, child visitation, child support, and child education. It also includes spousal support (if any) and insurance policies for life and health. Distribution of marital assets, which is to say anything of property and value (including debt) is part of the agreement. Even simpler marriages with no child and no property can result in an agreement of over ten pages. These are complex documents best drafted by experienced attorneys.

Legal Disclaimer: Liberty Hall Family PLLC's website is offered for information purposes only. It is not, and should not be construed as providing any legal advice or legal opinions as to any specific fact or circumstance. Further, it is not a solicitation of legal business.